The end of H1-B visa program as we know it?

Secretary of Dept. of Homeland Security Kirstjen Nielsen

WASHINGTON, D.C. — The Trump administration has doubled down on its intent to tighten the screws on the H-1B program, with Kirstjen Nielsen, the Secretary of Dept. of Homeland Security (DHS) — which has jurisdiction over the U.S. Citizenship and Immigration Services (USCIS) — telling Congress that only “the very best” among foreign workers under should be eligible for this non-immigrant professional visa category.

Appearing before the House Judiciary Committee on Dec. 20, Nielsen, making clear the Trump administration’s policy that it had made clear several months ago to completely overhaul the contours of the H-1B program said the administration’s priority is that these visa-holders do not harm American workers. The move could potentially restrict the number of foreign skilled workers employed by American companies, the majority of whom have been Indian information technology professionals over the past three decades.

She explained that “the H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge.”

Nielsen said, “Perhaps no other visa category has received as much attention in recent years as the H-1B, as reports of abuse of the program have caused outrage among the public,” and consequently served notice that “no qualified hard-working American should be forced to train their H-1B replacement, and then let go.”

She said that the number of H-1B petitions routinely exceeds the statutory cap, and among that pool of petitions, “we should endeavor to select the very best for the privilege of coming to the United States for work.”

“DHS seeks to ensure that American workers are not pushed aside for the promise of cheaper, foreign labor, and that employers, recruiters, or any of their agents do not exploit foreign workers,” Nielsen said.

The Secretary told the lawmakers that among steps the DHS has taken, included redoubling “our measures to detect employment-based visa fraud and abuse,” but acknowledged, “certain nonimmigrant visa programs need reform in order to protect American workers better.”

Nielsen said, “While current law only requires it for certain employers, which are few in number and can easily meet the wage and degree exemption, all employers should be required to certify that they have made a good faith effort to recruit U.S. workers before filing an H-1B petition, and have offered jobs to qualified and available American applicants.”

“Although current law prohibits some H-1B employers from displacing U.S. workers, there are loopholes that must close. We have to make sure the H-1B program does not harm American workers who may be as qualified and willing to do jobs that foreign workers are imported to fill,” she said.

Nielsen said that under President Trump’s Buy American, Hire American executive order, the DHS “is reviewing current guidance and regulation for opportunities to protect American workers while also providing good faith employers the opportunity to recruit H-1B workers where needed.’

“This balance is consistent with the statute and President Trump’s priorities. We also seek to work with Congress to make legislative changes that would provide more protections to the United States workforce,” she informed the lawmakers.

Nielsen said, “We want industry to have the workforce it needs, but that should not come at the expense of American workers. When a qualified and willing American worker is qualified for hire, he or she should be hired before looking abroad.”

She argued that “our nonimmigrant temporary work categories are not meant to supplant, but rather supplement, the workforce in the United States,” and reiterated, “Over the past few years, we have seen high profile stories of American tech workers terminated from jobs after training their foreign worker replacements. That is unacceptable.”

“Exploiting legal and illegal workers by paying them less or treating them unfairly will not be tolerated,” she said.

Addressing another issue that the Trump administration has been coming down hard on—that of student visa overstays— Nielsen said, “We have prioritized efforts to identify and locate student visa overstays and send leads that are more actionable to the field offices throughout the country.”

She said that as a result, 3,918 leads on student visa and exchange visitors to the field in FY (fiscal year) 2017 had been sent out, “an increase of approximately 65 percent from FY 2016.”

Nielsen also said that DHS had expanded worksite enforcement that that “we have increased criminal prosecutions of employers who knowingly hire unauthorized workers. This year to date, we have opened approximately 6,860 worksite investigations, which is an increase of approximately 400 percent from FY 2017, and initiated approximately 5,950 audits, an increase of approximately 430 percent from FY 2017.”

“These successes and many more, are a testament to our devoted workforce and their unbending commitment to the rule of law,” she said.

Nielsen said that requiring all U.S. employers to use E-Verify to confirm the employment eligibility of their employees, existing employees as well as new hires, “would greatly help reduce the magnet for illegal immigration and preserve jobs for legal workers.”

She also addressed the issue of the EB-5 program under which investors (and their spouses and unmarried children under age 21) are eligible to apply for a green card (permanent residence) if they make the necessary investment in a commercial enterprise in the United States, and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors, focusing on rural locations and areas experiencing high unemployment. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS, based on proposals for promoting economic growth.

Nielsen said this program too had “attracted much needed attention from both the House and Senate Judiciary Committees due to demonstrated concerns regarding fraud, abuse, and deviation from the intent of the Congress that created the program.”

“DHS shares those concerns and encourages Congress to reach a long-term legislative solution to provide DHS more authority to bring integrity to EB-5 adjudications.”

Nielsen told the lawmakers that “within the current statute, DHS is finalizing the EB-5 Modernization Final Rule for publication,” and would publish a Notice of Proposed Rulemaking to reform the Regional Center Program by September 2019.

But she acknowledged, “While these regulatory changes are designed to enhance the integrity of the EB-5 Program, they of course cannot address those areas under Congress’ control to reform.”

Thus, she said that DHS is also reviewing other possible regulatory changes within its authority to improve EB-5 and “looks forward to continuing coordination with Congress on this vital issue.”

While the Trump administration’s intent to come down hard on the H-1B program and drastically revamp its contours is expected to have an adverse impact on Indian IT outsourcing companies, U.S. lawmakers on both sides of the aisle, including the Indian American lawmakers Ro Khanna and Ami Bera, are expected to go along with the new administration proposals, because they too that over the years the H-1B program has been rampant with fraud and abuse and Indian outsourcing companies have been “gaming the system” costing American workers their jobs to underpaid foreign workers.

In a recent interview with India Abroad, Khanna said that the Trump administration “should focus on curbing the abuse of the H-1B visa program, which is corporations taking advantage of the H-1B visa holders by paying them below market wages and that’s hurting American workers.

Khanna, who has supported the bipartisan bill co-signed by Republican and Democratic Senators Charles Grassley and Dick Durbin, said, American workers were being paid $120,000 a year, while “these outsourcing companies are paying $60,000 a year and undercutting these wages, that is exploitation and that is hurting American companies.”

He noted that this bill also states that preference should be given to those with a U.S. degree. “That’s it. So, if you come to study here, you got to get preference and you should be paid the market wage. No one is saying don’t have immigrants—just done underpay them.”

Bera has also concurred with these views and said that this is where the reform of the H-1B program has to be zero in on.

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